Srinagar, July 9, KDC: The High Court of Jammu and Kashmir and Ladakh has granted bail to a Srinagar cleric accused of murdering a man with a sword over a love rivalry, holding that an undertrial cannot be kept behind bars indefinitely because of the prosecution’s failure to conclude the trial within a reasonable time.
Justice Sanjay Dhar passed the order in favour of Muneer Aziz War, who has remained in custody since June 9, 2012, in a murder case registered at Batamaloo Police Station. The Court held that although the allegations against the accused are grave, prolonged incarceration coupled with the prosecution’s inability to conclude the trial amounts to a violation of the constitutional guarantee of a speedy trial.
According to the prosecution, War was serving as Imam of Masjid Salafia at Firdous Abad, Batamaloo, where he allegedly developed an intimate relationship with a local woman. The investigation claimed that the deceased, Wali Mohammad Hajam, frequently visited the woman’s house because he worked with her father as a mason and had been expressing his affection towards her despite her objections. The prosecution alleged that after learning about these advances, the petitioner purchased a sword, planned the killing and waited for an opportunity to execute it.
The prosecution alleged that on the night of May 13, 2012, after Isha prayers, the petitioner invited the deceased to his room and repeatedly struck him on the head with the sword, causing fatal injuries. It further alleged that after the victim collapsed, the petitioner called a co accused, who assisted him in disposing of the body, which was later recovered from an open plot during the investigation on the basis of disclosure statements. The weapon of offence was also recovered during the investigation, according to the prosecution.
Seeking bail, the petitioner relied solely on his prolonged incarceration and argued that he had spent nearly 14 years in custody while the trial remained incomplete with no immediate prospect of its conclusion. The prosecution opposed the plea, contending that the allegations involved a heinous offence punishable with death and that the statutory restrictions governing bail continued to apply.
After examining the trial court record, Justice Dhar noted that charges had been framed in September 2012 and that out of 23 prosecution witnesses, only 20 had been examined during more than 13 years of trial, while three material witnesses were yet to testify. The Court observed that the trial court had itself recorded as early as February 2020 that the accused was entitled to a speedy trial and had directed the investigating officer to ensure the production of the remaining witnesses.
The High Court found that despite repeated directions, the prosecution had failed to secure the presence of the investigating officer and the doctor, resulting in continued delay. While noting that the defence had sought adjournments on a few occasions, the Court concluded that the overall delay was largely attributable to the prosecution.
Justice Dhar observed that police officers are duty bound to assist courts in ensuring expeditious trials and warned that if investigating officers themselves fail to appear as witnesses, criminal trials are bound to remain pending indefinitely. The Court reiterated that without the cooperation of the police and prosecuting agency, the constitutional promise of a speedy trial would remain illusory.
Relying on a series of Supreme Court decisions, including Union of India v. K.A. Najeeb and the recent judgment in Syed Iftikhar Andrabi v. National Investigation Agency, the Court held that statutory restrictions on the grant of bail cannot override constitutional protections where an undertrial has suffered prolonged incarceration and there is no reasonable likelihood of the trial concluding soon.
The Court observed that long incarceration by itself may not always justify bail, but it becomes a relevant ground where the delay in concluding the trial is attributable to the prosecution. It further noted that if an accused is ultimately acquitted after spending years in custody, no compensation can restore the lost years of liberty.
Holding that the petitioner had made out a case for bail because of the inordinate delay attributable primarily to the prosecution, the High Court directed his release on bail subject to furnishing a personal bond of Rs 1 lakh with two local sureties of the like amount. The Court also directed him to surrender his passport, not leave the Union Territory of Jammu and Kashmir without prior permission of the trial court and remain present on every date fixed during the trial. (KDC)
